DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 
  ex-PNSR, USN
Docket No. ND05-00127

Applicant’s Request

The application for discharge review was received on 20041029.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions) and the reason for the discharge be left blank.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area.  The Applicant did not respond.

Decision

A documentary review was conducted in Washington, D.C. on 20050428.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/Homosexuality - engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, authority:  MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I was not given due process as code of conduct now stands.  When upgraded I would like the narrative reason box (#28) left blank.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Applicant’s Georgia drivers license

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive:  USNR (DEP)	890328 - 890821	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  890822		Date of Discharge:  901227

Length of Service (years, months, days):

	Active:    01  04  06
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  67/57

Highest Rate:  PNSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB*			Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*Not observed

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Homosexuality - engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, authority:  MILPERSMAN, Article 3630400.

Chronological Listing of Significant Service Events:

900627:	Medical Department:  Applicant referred by chaplain.  Applicant states he is bisexual and is coming forth now because he is being threatened by crew members and is afraid for his own safety.  A: (1) Admission of homosexuality, appearing sincere.  (2) Fear of threats.  P:  Will refer to psychiatry for judgment as to validity of claims.  If felt to be true undertake administrative separation.

900627:	Applicant’s Voluntary Statement made to NCIS special agent concerning his homosexuality.

900628:	NJP for violation of UCMJ, Article 83:  Fraudulent enlistment on 890822, to wit: false representation that he is not a bisexual when in fact he is; violation of UCMJ, Article 125:  Committed four acts of sodomy on diverse occasions with different individuals from Feb90 to Jun90, violation of UCMJ, Article 134:  Performed unnatural copulations with different individuals on various occasions from Feb90 to Jun90.
	Award: Forfeiture of $362.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication in the record of appeal.

900806:	Applicant notified of intended recommendation for separation by reason of homosexuality as evidenced by the Applicant engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts and defective enlistment and induction due to fraudulent entry into naval service as evidenced by the Applicant’s admission to being a bisexual and failing to reveal civilian involvement.  Applicant advised, that if separation is approved, the least favorable characterization of service may be under other than honorable conditions.

900814:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

900928:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed homosexual acts and that such acts warranted separation, and recommended discharge under other than honorable conditions.

901016:	Commanding Officer recommended discharge under other than honorable conditions by reason of homosexuality as evidenced by engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts and defective enlistment and induction due to fraudulent entry into naval service as evidenced by an admission to being a bisexual and failing to reveal civilian involvement.

901105:	CNMPC directed the Applicant's discharge with under other than honorable conditions by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19901227 with an under other than honorable conditions by reason of homosexuality - engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts homosexual conduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant contends that his discharge is inequitable because he was not given the appropriate due process he would receive under current regulations.  Under applicable regulations, a discharge may be deemed inequitable if it is determined policies and procedures under which the Applicant was discharged differ in material respects than current policies and procedures.  Furthermore, if these differences represent a substantial enhancement to the Applicant and there is substantial doubt he would have received the same discharge under the current policies and procedures, the Applicant is entitled to relief.  At the time of Applicant’s discharge he was properly processed for separation, elected an administrative discharge board and allowed to present his case.  The administrative board procedures have not changed substantively since the Applicant’s discharge.  The Applicant would be entitled to no greater procedural safeguards than he was afforded at the time of his discharge.  Furthermore, the Applicant received an under other than honorable conditions discharge because the facts of his homosexual conduct included certain aggravating facts.  Specifically, the evidence suggests that the Applicant engaged in homosexual acts while in public view and aboard a naval installation.  The Applicant admitted to homosexual conduct while in a fast food restaurant restroom and in a gym sauna, both occurring aboard a naval installation.  Such behavior is still considered aggravating under current regulations and such conduct still merits an under other than honorable conditions discharge.  The Board found the Applicant’s contention to be without merit.  Relief denied.

The Applicant requests a narrative reason for separation change.  The Applicant was dual processed for separation by reason of homosexuality, and defective enlistment and induction – fraudulent entry.  The Applicant’s conduct, warranting separation by reason of homosexuality and defective enlistment and induction – fraudulent entry, is clearly documented in the service record.   The separation authority determined that homosexuality most clearly described the reason for discharge.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Narrative Reason Separation would be inappropriate.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), 15 June 1987 until 
14 Aug 91, Article 3630400, SEPARATION OF ENLISTED PERSONNEL BY REASON OF HOMOSEXUALITY. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Directive 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023